Karnataka High Court
Sri. Prajwal Revanna vs State By Holenarasipura Police Station on 9 July, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO. 3292 OF 2025 (439(Cr.PC) / 483(BNSS)
BETWEEN:
SRI. PRAJWAL REVANNA,
S/O H. D. REVANNA,
AGED ABOUT 33 YEARS,
CHENNAMBIKA NILAYA,
CHENNAMBIKA CIRCLE,
HOLENARASIPURA,
HASSAN - 573 211
...PETITIONER
(BY SRI. PRABHULING K.NAVADGI, SENIOR COUNSEL FOR
SRIYUTHS; ASHWIN C., PARITOSH S.M., KEERTHI REDDY,
ADVOCATES)
AND:
STATE BY HOLENARASIPURA POLICE STATION
(NOW INVESTIGATED BY THE SPECIAL INVESTIGATION TEAM)
Digitally signed CID, BENGALURU,
by CHANDANA NO.1, CARLTON HOUSE,
BM PALACE ROAD,
Location: High BENGALURU - 560 001
Court of (REPRESENTED BY SPECIAL PUBLIC
Karnataka PROSECUTOR, S.I.T. CID, BANGALORE)
...RESPONDENT
(BY SRI. PROF. RAVIVARMA KUMAR, SPL.P.P. A/W
SRI. B. N. JAGADEESHA, SPL.P.P.)
THIS CRIMINAL PETITION IS FILED U/S 439 CR.PC (FILED U/S
483 BNSS) PRAYING TO DIRECT THE RESPONDENT
HOLENARASIPURA TOWN P.S., TO RELEASE THE PETITIONER /
ACCUSED NO.2 ON BAIL IN C.C.NO.29064/2024 ARISING OUT OF
CR.NO.0107/2024 FOR THE ALLEGED OFFENCES U/S 376,
376(2)(K), 354, 354(A), 354(B), 354(D), 506, 509, 201 OF IPC AND
SEC. 66E OF I.T. ACT, 2000 BY THE RESPONDENT
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HOLENARASIPURA TOWN P.S., POLICE INVESTIGATED BY
SPECIAL INVESTIGATION TEAM, C.I.D., BANGALORE, PENDING ON
THE FILE OF THE HON'BLE XLII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BANGALORE (42ND ACMM) SPECIAL
COURT TO DEAL WITH CRIMINAL CASES RELATING TO SITTING
AS WELL AS FORMER M.P. AND MLA TRIABLE BY MAGISTRATE.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In this petition, the petitioner who is accused No.2 in
C.C.No.29064/2024 arising out of Crime No.107/2024 registered by
the respondent – police for the offences punishable under Sections
376, 376(2)(K), 354, 354(A), 354(B), 354(D), 506, 509, 201 of IPC
r/w Section 66E of I.T.Act, 200o, has preferred the present petition
under Section 439 of Cr.P.C. seeking his release on bail and for
other reliefs.
2. Heard Sri.Prabhuling K.Navadagi, learned Senior counsel
appearing for the petitioner and Prof.Ravivarma Kumar, learned
Special Public Prosecutor for the respondent.
3. Learned Spl.P.P. for the respondent raised a preliminary
objection regarding maintainability / entertainability of the present
petition by contending that the same was not maintainable /
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entertainable by this Court, since the earlier bail petition in
Crl.Misc.5509/2024 was filed by the very same petitioner before the
trial court was dismissed vide order dated 26.06.2024, subsequent
to which, the bail petition in Crl.P.No.6401/2024 was also
dismissed by the co-ordinate Bench of this Court vide final order
dated 21.10.2024 and confirmed by the Apex Court in SLP
(Crl.)No.15292/2024 dated 11.11.2024.
3.1 It is therefore submitted by the learned Spl.P.P. for the
respondent that since the petitioner had earlier approached the trial
court, this Court and Apex Court as stated supra, the present
petition was not maintainable / entertainable at the instance of the
petitioner, who is to be relegated to expedite his remedy before the
trial court before approaching this Court by filing the present
petition. In support of his contentions, learned Spl.P.P. placed
reliance upon the following judgments:-
(i) Arvind Kejriwal v. Central Bureau of
Investigation – 2024 SCC OnLine SC 2550;
(ii) Mr. Dinesh Gowda and Another v. The State
through Whitefield Police Station, Bangalore – ILR 2016
KAR 3965;
ILR 2001 KAR 4080;
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(iv) KWMTA GWRA BRAHMA vs. State of Assam –
2015 SCC OnLine Gau 170;
(v) Phulami Tamang vs. State (NCT of Delhi) –
2025 SCC OnLine Del 400;
(vi) Mohalal v. State of Maharashtra – 2007 SCC
OnLine Bom 421;
(vii) Sri.Imran H vs. State of Karnataka –
Crl.P.No.362/2025 Dated 31.01.2025;
(viii) Shekhar Prasad Mahto @ Shekhar Kushwaha
vs. The Registrar General, Jharkhand High Court & Anr.
– Writ Petition(s) (Criminal) No(s). 55/2025 dated
07.02.2025 (SC);
4. Per contra, learned Senior counsel for the petitioner
submitted that the petitioner was undisputedly arrested as long
back as on 31.05.2024 and has been in judicial custody for more
than 13 months as on today and as such, in view of the long
incarceration of the petitioner for more than 13 months, there was
no bar / prohibition for the petitioner to maintain the present petition
which is entertainable by this Court without relegating the petitioner
to approach the trial court and as such, the preliminary objection
raised by the respondent may be rejected and the matter be
disposed of on merits. In support of his submissions, he placed
reliance upon the following judgments:-
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(i) Kanumuri Raghurama Krishnam Raju vs. State
of Andhra Pradesh and others – (2021) 13 SCC 822;
– 2024 SCC OnLine SC 1920.
(iii) Arvind Kejriwal v. Central Bureau of
Investigation – 2024 SCC OnLine SC 2550;
5. I have given my anxious consideration to the rival
submissions and perused the material on record.
6. Initially, the question / issue as to whether the present
petition could be taken up by this Bench is came up for
consideration, since earlier bail petition in Crl.P.No.6401/2024 was
rejected by the co-ordinate Bench of this Court vide final order
dated 21.10.2024. In this context, it is relevant to state that the
petitioner has filed a Memo dated 09.07.2024, which reads as
under:-
MEMO
“The undersigned Counsel for the Petitioner most
respectfully submits that, in view of the clarification Order dated:
07.02.2025 by the Hon’ble Supreme Court of India in Writ
Petition (Criminal) No.55/2025 regarding listing of Successive
Bail Petitions before the Concerned No.RJ.No.28/2025 issued by
this Hon’ble Court, the Petitioner has no objection for the instant
application/petition to be heard before the present Roster
deciding matters pertaining Special Court (Where members of
the state or central legislature are accused).
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Wherefore, it is respectfully prayed that the instant Memo
be taken on record for necessary Orders in the interest of justice
and equity”.
7. The aforesaid Circular issued by this Court reads as
under:-
RJ No.28/2025 High Court of Karnataka,
Bengaluru,
th
Dated: 20 February 2025CIRCULAR
Hon’ble Supreme Court of India, in the case of Shekhar
Prasad Mahto @ Shekhar Kushwaha v. The Registrar General,
Jharkhand High Court and Another, in Writ Petition (s) (Criminal)
No. (s) 55 of 2025 passed the order clarifying that if in a
particular High Court, the bail applications are assigned to
different single Judge/Bench, in that event, all the applications
arising out of same FIR should be placed before one learned
Judge and if on account of change of the roster, the learned
Judge who was earlier dealing with the bail matters is not taking
up the bail matters, the aforesaid directions would not be
applicable, the relevant portion of which reads as under:-
“Xxxx
Xxxx
7. However, it is to be noted that in many High
Courts, the roster system is followed.
8. After a particular period, the assignment of the
learned Judges change. It is also quite possible that the
learned Single Judge, who was earlier taking up the
assignment of bail matters may in the subsequent roster be
a part of the Division bench.
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9. We are, therefore, of the view that if the aforesaid
direction is followed universally, it may lead to disruption of
benches inasmuch as the learned judge who had initially
heard the bail application of one of the accused, may have
become a part of some Division Bench when a bail
application arising out of the same FIR is filed by another
accused.
10. We, therefore, clarify that if in a particular High
Court, the bail applications are assigned to different single
Judge/Bench, in that event, all the applications arising out
of same FIR should be placed before one learned Judge.
11. This would ensure that there is a consistency in
the views taken by the learned judge in different bail
applications arising out of the same FIR.
12. However, if on account of change of the roster,
the learned judge who was earlier dealing with the bail
matters is not taking up the bail matters, the aforesaid
directions would not be applicable.
13. Further, we expect that in order to maintain
consistency in the views taken by the Court, the learned
judge, who will hear the subsequent applications filed for
bail, may give due weightage to the views taken by the
earlier judge, who had dealt with the bail applications
arising out of the same FIR.
14. We find that if this is not followed and if the
judges sitting in the Division Bench or thereafter taking up
different assignments are required to take up the
applications arising out of the same FIR, it may further delay
the decisions in the bail matters.
15. The Registrar (Judl.) is directed to forward a copy
of this order to the Registrar Generals of all the High Courts.
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16. Needless to state that taking into consideration
the urgency in deciding bail matters, learned Judge of the
High Court to whom the bail application of the present
petitioner is assigned, shall decide the matter expeditiously.
xxxx
xxxx”
In view of the above, all the concerned officers and
officials of the Principal Bench and Benches at Dharwad and
Kalaburagi are hereby directed to post bail petitions arising out
of same FIR before the same Judge in the event of bail petitions
are assigned to more than one Bench and if on account of
change of the roster, the Hon’ble Judge who was earlier dealing
with the bail matters is not taking up the bail matters, the above
direction is not applicable.”
8. In view of the aforesaid Memo filed by the petitioner
coupled with the Circular issued by this Court and the judgment of
the Apex court in Shekar Prasad Mahto’s case supra, the present
petition is taken up for consideration by this Court.
9. As stated supra, before proceeding further, it would be
necessary to deal with the preliminary objection raised by the
respondent as to maintainability / entertainability of the present
petition in view of the earlier round of litigation between the parties.
10. In this regard, a perusal of the material on record will
indicate that as stated supra, the petitioner had earlier filed
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Crl.Misc.No.5509/2024 seeking regular bail which was dismissed
by the trial court vide order dated 26.06.2024. Subsequently, the
petitioner approached this Court in Crl.P.No.6401/2024, which was
also dismissed by the co-ordinate Bench of this Court vide final
order dated 21.10.2024. The said order of this Court was
challenged by the petitioner before the Apex Court in SLP (Crl.)
No(s).15292/2024 which was dismissed by the Apex Court vide
final order dated 11.11.2024.
11. There is no gainsaying the fact that the trial court as well
as this Court have concurrent jurisdiction to entertain a petition for
bail under Section 439 of Cr.P.C; however, in order to approach
this Court without approaching the trial court first, it would be
necessary / essential for the petitioner / bail applicant to plead,
prove and establish existence of exceptional / compelling
circumstances which would demonstrate as to why he did not avail
the remedy of approaching the trial court before approaching this
Court seeking bail. A co-ordinate Bech of this Court in an
application for anticipatory bail under Section 438 Cr.P.C. in
Dinesh Gowda’s case supra, held as under:-
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“3. Before adverting to the factual matrix of this case
and to ascertain as to whether the petitioners are entitled for
grant of anticipatory bail or not; a serious legal question has
been raised before this Court by the Learned High Court
Government Pleader that the petitioners without exhausting
the remedy under Section 438 of Cr.P.C. before the
jurisdiction Sessions Court, has directly approached this
Court. Therefore, the petition is not maintainable and the
petitioners have to be relegated to the Court of Sessions first
and then they can approach this Court. In this background,
the legal question that arises for consideration of this Court is
that —
“Whether the Petition filed u/’s. 438 of Cr. P.C.
is maintainable before the High Court without
exhausting remedy under the said provision
before the Court of Sessions which has
concurrent jurisdiction with that of the High
Court?”
XXXX
15. As could be seen from the various decisions cited by
the Learned High Court Government Pleader of different
High Courts, they have also taken the similar view that the
parties have to approach the Sessions Court first and after
exhausting the remedy they can approach the High Court
but for the special reasons, they can also approach the
High Court.
16. This Court in K.C. Iyya v. State of Karnataka as
noted supra, has dealt with this provision and also the
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concurrent jurisdiction of the High Court and the Sessions
Court, this Court has not only considered various points
raised in this regard, but also considered the effect of the
ruling of the Hon’ble Apex Court between Gurubaksh
Singh Sibbia v. The State of Punjab and Sarbajit
Singh v. The State of Punjab (supra) and also various
decisions of the other High Courts and ultimately after
interpreting the said provision, it held that the party has to
approach the Sessions Court first and then he can
approach the High Court or for special reasons, he can
approach the High Court.
17. Having looked into the above said rulings and
also the principles laid down in Gurubakshsingh‘s case, it
is crystal clear that there is no dispute with regard to the
concurrent powers of the High Court and as well as the
Sessions Court.
18. The intention of bringing out Section 438 Cr.P.C.
is enabling each and every person in the Country if under
extraordinary circumstances under exigencies either to
approach the Court of Sessions or the High Court which
can be concurrently exercised by both the Courts. Though
such remedy, cannot be riddled down by imposing any
extraordinary condition but still the Court can refuse to
entertain the bail petition and direct the party to approach
the Court of Sessions first because Section 438 of Cr.P.C.
shall not be exercised as a matter of right by the party,
though it can be invoked either before the Sessions Court
or before the High Court. It is purely the discretionary
power of the Court to exercise power depending upon the
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facts and circumstances of each case. Therefore, the High
Court can direct the party to go first before the Court of
Sessions and then come to the High Court though there is
no embargo under the statute itself, but the Court can do
so on the basis of various factors.
19. It is worth to note here that whenever the
concurrent jurisdiction is vested under the statute
simultaneously in two Courts of one is superior to the
other, then it is appropriate that the party should apply to
the subordinate Court first, because the higher Court
would have the advantage of considering the opinion of
the Sessions Court. More over, the party will get two
opportunities to get the remedy cither before the Sessions
Court or before the High Court but if once he approaches
the High Court, he would run the risk that, the other
remedy is not available to him if he failed to get the order
in the High Court, he cannot go before the Sessions Court
for the same remedy. However, vice versa is possible.
20. It is also to be notable that the Sessions Court
will always be nearest and accessible Court to the parties.
More over, considering the work load of the Courts in the
Country, the superior Courts particularly, the High Courts
are flooded with heavy pendency of cases. In order to
facilitate the other parties who come before the Court with
other cases before the High Court (which has got
exclusive Jurisdiction) and also in order to provide
alternative remedy to the parties, it is just and necessary
that the party shall first approach the Sessions Court under
Section.438 of Cr.P.C. so that the High Court can bestow
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its precious time to deal with other pending cases which
requires serious attention and expeditious disposal, where
the parties who have come to the High Court after
exhausting remedy before the Magistrate Court or the
Sessions Court for grant of bail and for other reliefs.
21. The grant of anticipatory bail or regular bail
requires appreciation, scrutiny of facts and after going
through the entire materials on record. In that context, if
the Sessions Court has already applied its mind and
passed the appropriate order, it would be easy for the High
Court to look into or have a cursory glance of the
observation made by the Sessions Court and dispose of
the case, with expedition.
22. It should be borne in mind that the Judges have to
decide the cases on considering law, justice, equity and
good conscience, as they come before them. It should not
also be lost sight of the prevailing circumstance to interpret
the law in such a manner so that it would be beneficial to
the entire judicial system as well as the litigant public. It
will not be strange by employing judicial artifices and
techniques, the Court can wisely interpret law by adopting
a policy which is adequately meet the ends of justice. In
such circumstances, the Court has to interpret the law in
such a manner which would advance Justice and suppress
the mischief. It should not be interpreted in a straight
jacket formula while laying down cast iron principles. The
Judges have to understand why such statute has been
introduced with what intention by the legislators, while
considering the particular provision.
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23. It is also worth to note here that the Sessions Court
and the High Court are concurrently empowered to grant
bail under Section 438 of Cr.P.C. The object is that if the
party who is residing in the remote area can directly
approach the Sessions Court which is easily accessible. In
order to obviated the very object and purpose, the party
has to explain why he did not go to that Court. Otherwise,
it amounts to making that provision redundant, so far as
the Sessions Courts are concerned. Even once again re-
looking into structure of Section 43 8 of Cr.P.C., it is purely
the discretionary power given to the Court to entertain the
Petition. It is the discretion given to the Courts to exercise
that power. When discretion vests with Court, the party
has to explain why he has come to the High Court directly,
for the discretionary relief under the said provision.
24. Therefore, looking to the above said rulings of
different High Courts and particularly, the consistent view
taken up by this Court, I do not find any strong reason to
deviate from the said view taken by this Court earlier.
Hence, I am of the opinion, the point formulated by me
noted above has to be answered accordingly.
25. Hence, I answer the point raised as follows:
“The bail petition filed u/s.438 of Cr.P.C. is not
maintainable before the High Court without
exhausting remedy before the Court of Sessions,
which has got concurrent jurisdiction. However,
for extraneous or special reasons, the High Court
can also exercise such power for grant of the
remedy under the said provision.”
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26. Having held in such manner, now let me see whether
the petitioner has approached this Court with any such
extraneous or special reason.”
12. Similarly, in Savitri Samson‘s case supra, one more
co-ordinate Bench of this Court held as under:-
“I have heard both sides in detail. No doubt, under
Section 439 Cr. P.C. both the Sessions Court and the High
Court have concurrent jurisdiction to consider the
application of an accused to enlarge him on bail. But, that
does not mean that an accused can file bail applications
simultaneously before both the Courts. Keeping in view the
word “or” used in the Section, which indicates that bail
application can be filed either before the Sessions court or
before the High Court and not simultaneously before both
Courts.
In my view and as is the practice although the High
Court has concurrent jurisdiction with Sessions Court to
grant bail, it is desirable that the ordinary practice should
be that the lower Court should be first moved in the matter,
though in exceptional case and special circumstances, the
High Court may entertain and decide an application for bail
either under Section 438 or Section 439 Cr. P.C. this is
specially important because any expression of opinion by
the Superior Court, is likely to prejudice if not frequently, in
cases few and far between, the trial in the lower Court.
Hence, in my view, it is only in exceptional circumstances
that an application for bail should be made directly to the
High Court and in the absence of special circumstances
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the application should not be entertained by the High
Court.
By looking into analogues provision in the Code it is
normally to be presumed that the Court of Sessions would
be first approached for grant of bail, unless an adequate
case for not approaching that Court has been made out.
I am of the opinion that it would be a sound exercise of
judicial discretion not to entertain each and every
application for either anticipatory or regular bail directly by
the High Court bypassing the Court of Sessions.
In my view ordinarily, the Sessions Court is nearer to
the accused and easily accessible. It will be more speedy
disposal since the investigation reports or case papers
also can be summoned immediately. There is no reason to
believe that Sessions Court will not act in accordance to
law and pass appropriate order. In a given case if any
accused is grieved his further remedy would be to
approach the High Court. In such case, the High Court will
also have the benefit of the reasons given by the Sessions
Court. As such, looking at the case from any angle, in my
view, simultaneous filing of application for bail in both the
Sessions Court and the High Court is impermissible.
Hence, in the present case also, this petition before this
Court is not maintainable one, in view of the admitted fact
that the petitioner has already approached the Sessions
Court, Gulbarga, for the same relief and the Sessions
Court has yet to decide the same.
At this stage, learned Counsel submits that he be
permitted to withdraw the petition with liberty to approach
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this Court if need be. Permission is granted and the
petition is dismissed as withdrawn.
Taking into consideration the peculiar facts and
circumstances of the case and the submission of the
Counsel for the petitioner, the Sessions Court is directed
to dispose of the application expeditiously within one week
from the next date fixed, i.e., 8.6.2001.
Before parting with the case, I am very much pained to
note the misleading attempt made by the Advocate before
the Sessions Court as to the nature of the petition filed
before this Court. Such misleading practice is deprecated.
With these observations, this petition stands dismissed
as withdrawn.”
13. The Division Bench of the Gauhati High Court in KWMTA
GWRA Brahmas‘ case supra, held as under:-
“5. The power and jurisdiction of the Sessions Court
and the High Court is concurrent in granting anticipatory
bail under section 438 of the Cr.PC and bail, under section
439 of the Cr.PC. It is seen that majority of the bail
applications filed before the High Court have been filed
directly without exhausting the remedy before the
Sessions Court. Therefore, the question that arose for
consideration is to the effect that whether it was essential
that a person/accused before approaching the High Court
for grant of anticipatory bail (438 of the Cr.PC) and bail
(439 of the Cr.PC) should exhaust his remedy before the
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Sessions Court and then file application before the High
Court.
6. In the decisions of the Madhya Pradesh High Court
in Abdul Karim Khan v. State of Madhya Pradesh, AIR
1960 MP 54, the Rajasthan High Court
in Hajialisher v. State of Rajasthan, 1976 Crl. LJ 1658, the
Punjab and Haryana High Court in Chhajju Ram
Godara v. State of Haryana, 1978 Crl. LJ 608, the Bombay
High Court in Jagannath v. State of Maharashtra, 1981 Crl.
LJ 1808, the Karnataka High Court in K.C. Iyya and,
etc. v. State of Karnataka, 1985 Crl. LJ 214, the Gujarat
High Court in Rameshchandra Kashiram Vora and,
etc. v. State of Gujarat, 1988 Crl. LJ 210, the Madhya
Pradesh High Court in Smt. Manisha Neema v. State of
M.P., 2003 (2) Crimes 402, and the Kerala High Court
in Mathew Zacharish v. State of Kerala, 1974 Crl. LJ 1198
and Usman v. The Sub-Inspector of Police, 2003 Crl. LJ
3928, it is held that the accused should first exhaust his
remedy before the Sessions Court before making an
application before the High Court for grant of anticipatory
bail under section 438 of the Cr.PC and bail under section
439 of the Cr.PC.
7. The reasons stated in the above decisions, by and
large, are as follows:
(i) Whenever the concurrent jurisdiction is vested by the
statute simultaneously in two courts of whom one is
superior to the other, it is appropriate that the party should
apply to the inferior court first because the superior court
would have the advantage of considering the opinion of
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the inferior court when occasion arises for exercise of
other’s jurisdiction in the matter.
(ii) The inferior court normally Will be the nearest accessible
court. Therefore, it is necessary that the applications be
made before the inferior court.
(iii) The superior court is flooded with heavy pending cases. It
would be more appropriate that the inferior court has to be
approached in the first instance so that the superior court
will have sufficient time to deal with the other pending
cases which require serious judicial attention for a just and
expeditious disposal.
(vi) The grant of anticipatory bail or bail is by and large
requires appreciation and scrutiny of facts to see whether
a person/accused is entitled to bail or not.
8. In the above decisions/however, it is laid down that it
is not a strict rule that; the party should first approach the
Sessions Court and then move the High Court under
section 438 of the Cr.PC or 439 of the Cr.PC. However, in
exceptional circumstances it is said that the party can
move the High Court directly without approaching the
Sessions Court.
9. Per contra, a Full Bench of the Allahabad High Court
in para 8 of its judgment in Onkar Nath Asrawal v. State,
1976 Crl. LJ 1142 has made the following observations:
“8. It may, however, be mentioned that inasmuch
as section 438 of the Code of Criminal Procedure,
1973 gives a discretionary power to grant bail, this
discretion is to be exercised according to the facts
and circumstances of each case. There may be
cases in which it may be considered by the High
Court to be proper to entertain an application without
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the applicant having moved the Court of Session
initially. Similarly there may be cases in which the
court may feel justified in asking the applicant to
move the Ses-along Court or to refer the matter to
that court. In any case all depends upon the
discretion of the Judge hearing the case”.
10. The High Court of Himachal Pradesh in Mohan Lai;
etc. v. Prem Chand, AIR 1980 HP 36 has held that it is not
necessary that the applicant should be asked to apply to
the Sessions Judge before making an application to the
High Court for anticipatory bail under section 438 of the
Cr.PC. However, in para 11 of its judgment the High Court
has made the following observations:
“11. A bare reading of the section shows that
no restriction, unlike sections 397(3) and 399(3),
has been placed on a person wishing to move the
High Court for anticipatory bail. A person is not
required to move the Sessions Judge first.
It is true that under the old Code whenever a
concurrent jurisdiction was conferred on more than
one court, the inferior court was expected, as a
matter of practice, to be approached first. However,
in the case of anticipatory bail to force a person to
move the Sessions Judge first may result in
uncalled for curtailment of his right. For various
reasons a person may like to move the High Court
straightway and may not like to; approach the
Sessions Judge. Since the section relates to the
liberty of a person, we would not like to impose any
kind of restriction on his right to move the High
Court in the first instance”.
11. The High Court of Calcutta in Diptendu
Nayek v. State of West Bengal, 1993 CWN 229 has held
that an accused can move anticipatory bail before the High
Court even though his application under section 438 of the
Cr.PC is rejected by the Sessions Judge: while doing so,
the petitioner cannot apply under the revisional jurisdiction
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of the High Court but can apply under section 438 of the
Cr.PC.
12. The Andhra Pradesh High Court in Y.
Chendrasekhara Rao v. Y.V. Kamala Kumari, 1993 Crl. LJ
3508 has held that the provisions of section 438 of the
Cr.PC conferred power both in the High Court and the
Sessions Court for anticipatory bail. As for the denial of
moving the High Court in the first instance, the High Court
in para 22 of its judgment has made the following
observations:
“22. The practice followed by this court in
entertaining revision petitions under the Code of
Criminal Procedure, 1898 cannot afford any
guidance in the interpretation of section 438 of the
present Code. Which should be more convenient to
the affected party cannot be conjectured by the
High Court when Code confers concurrent
jurisdiction both on the High Court and the Court of
Session. If the party who intends to move an
application under section 438 feels that the moving
the Court of Session is more convenient, he may
do so. But if he thinks that approaching the High
Court is more convenient and less time-consuming
he shall not be precluded from doing so. Situations
may conceivable arise when a person may find it
more efficacious to approach the High Court under,
section 438. A resident of Srikakulam or
Yisakhapatnam, if apprehends arrest when he is in
Hyderabad, may find it more convenient to move
the High Court under section 438 for anticipatory
bail without any loss of time instead of moving the
Court of Session of his native District. It is not
possible to visualise comprehensively what precise
reasons impel persons to invoke jurisdiction of the
High Court, in the first instance, under section
438.”
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13. The High Court of Kerala in para 12 and 13 of its
judgment in Balan v. State of Kerala, 2004 Crl. LJ 3427
has, made the following observations:
“12. It is undoubtedly true that the courts have
not commended ‘frog leaping’. This view was
expressed in Mathew Zacharia v. State of Kerala,
1974 KLT 472, while examining a petition under
section 497. The court was Obviously considering
a matter before section 438 had been brought on
the Statute book. The obvious reason was that the
Code did not confer the right to choose. Even
otherwise, the courts respect the principle of
hierarchy. This, however, cannot mean that the
doors of this court shall be shut out to a person
whose liberty is under an imminent threat and he
will be allowed entry only after the bail has been
declined by the Sessions Court. Accepting this
principle may result in denial of liberty. We need to
remember that for a majority of people, the sight of
prison is painful. The thought of the trauma is
terrifying. It creates a terror in the mind. The court
cannot be mindless of such a person’s plight. The
need to save him from the shame and shock has to
be kept in view.
13. Thus, it is no surprise that the statute has
given the applicant a choice. On a plain reading of
the statutory provisions, it is clear that the right to
choose the forum is with the person who is
apprehending arrest or has been actually arrested.
This right should not be curtailed by any Self-
imposed restraint. Such restrictions/as mentioned
in the Order, can result in more harm than good
and defeat the object with which the provision was
introduced.”
14. After carefully analysing the ratio laid down in the
above decisions the salient aspect that emerges is to the
effect that–
(i) Although under section 438 of the Cr.PC a person/accused
is given the right to move an anticipatory bail either before
the Court of Sessions or the High Court it is, always at the
discretion of the High Court that whether to entertain the
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application or not. There is no absolute right on the
person/accused to insist that the High Court should decide
his application on merits: it all depends upon the facts and
circumstances of each case.
(ii) Insofar as the provisions of section 439 are concerned no
option to choose the forum is given to the person/accused
unlike tinder section 438. When the inferior court and the
superior court are invested with concurrent
jurisdiction/normally a person/accused has to exhaust his
remedy before the inferior court. If the person/accused is
aggrieved by the order of the inferior court then he can
approach the High Court, in which event the High Court
will have the benefit of considering the reasons and
opinion given by the inferior court. The objective of
investing concurrent jurisdiction in the Sessions Court and
in the High Court is basically for the reason that the
Legislature reposed trust in the wisdom of the Sessions
Judges who by their longstanding experience would have
acquired and equipped with necessary skills to exercise
the powers under the concurrent jurisdiction. The suitable
and eligible Sessions Judges would also be elevated to
the High Court. The object of investing concurrent
jurisdiction is to share the serious responsibility and
powers of the High Court.
(iii) For consideration of bail applications a lot of
miscellaneous work is to be done-like going through the
case-diary, remand applications, statements of the
witnesses, etc. Many a time the investigating officers from
different places of the state have to be summoned for
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production case-diaries and it becomes a more time-
consuming exercise. The Sessions Courts which are
nearest to the police stations in its division where
investigations are done it is easy for the Sessions Court to
summon the case-diaries and investigation papers for
considering the bail application. Therefore, it is necessary
that the Sessions Court which is invested with the
concurrent jurisdiction could effectively deal with all
preliminary work of scrutiny of the investigation material
while considering the bail application. In the event of
rejection of bail application by the Sessions Court the
persons/accused can still move the High Court for grant of
anticipatory bail under section 438 of the Cr.PC or bail
under section 439 of the Cr.PC, as the case may be.
(iv) The High Court in its writ jurisdiction will have to decide
the cases involving the challenge to the actions of the
Government and the statutory authorities, etc. The High
Court as a court of appeal and second appeal will have to
deal with civil appeals, criminal appeals. Besides, the High
Court has revisional and inherent jurisdiction under the
Code of Criminal Procedure. The. High Court under article
227 of the Constitution of India will have to consider the
orders of the tribunals and quasi-judicial authorities;
besides, shall have to consider the orders passed by the
Civil Courts in the matter of interlocutory application. The
quality of work the High Court does is of very important
nature which requires laying down the law on the varied
and several cases that come before the High Court in
variety of cases.
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(v) The number of pendency of cases at the High Court would
be usually high and a large chunk of the judicial time has
to be devoted to several subjects where questions of law
have to be resolved and ratio has to be laid down as
precedent to be followed by the lower court. Therefore, in
order to avoid the avoidable additional burden it is just and
necessary. that a person/accused be asked to approach
the Sessions Court: if he is able to get the relief before the
Sessions Court the question of invoking the jurisdiction of
the High Court would not arise.
(vi) The practice under the-Code of Criminal Procedure earlier
to the 1973s was that in the matters of revision and bail
concurrent jurisdiction was invested in the High Court and
the Sessions Court. It was the practice that a
person/accused had to exhaust his remedy before the
Sessions Court before he invoked the revisional
jurisdiction or sought bail under section 498 of the Cr.PC
before the High Court.
15. The profile of the filing of bail application before the
this court from the year 2004 to 2014 (31.10.2014) is as
follows.
Year Institution
2004 2778
2005 3288
2006 3745
2007 4934
2008 6022
2009 5171
2010 6543
2011 7049
2012 9120
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2013 9622
2014 7424
16. The above figures disclose that yearly there is great
deal of increase in the number of filing of bail application
directly before this court and it is consuming a large chunk
of the judicial time for disposal of bail applications. Almost
2-3 benches are regularly constituted to deal with the bail
applications. There is huge pendency of criminal appeal
before the Division Bench, and criminal appeal, criminal
revision and criminal petition (482 of the Cr.PC) before the
Single Judge, besides there is huge pendency of civil
appeals. Not usually this High Court has always functioned
with full sanctioned strength. There are currently three
outlying benches where Judges have to be deputed to
deal with the work at the outlying benches.
17. It is, therefore, necessary that normally a
person/accused should file an anticipatory bail application
under section 438 of the Cr.PC or a bail application under
section 439 of the Cr.PC before the Sessions Court and
thereafter he can approach the High Court. However, this
is not an inviolable rule. In exceptional circumstances a
person/accused can directly approach the High Court. The
following are the circumstances under which a
person/accused can directly approach the High Court.
(i) When a person/accused from other State has to move an
application for grant of anticipatory bail under section 438
of the Cr.PC, if it is convenient for him to move such
application before the High Court directly, which is nearer
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from point of distance, such in the application filed before
the High Court need not be rejected on the ground that he
can approach the Sessions Court unless the Sessions
Court is also located in the same place.
(ii) Whenever in a Sessions’ jurisdiction a particular incident or
crime has attracted a lot of public and media attention with
an adverse public opinion having been built up against the
person/accused in such cases section 438, Cr.PC
applications and section 439, Cr.PC applications can be
filed directly before the High Court.
(iii) When the Sessions Court has already rejected an
application for grant of bail under section 438/439 of the
Cr.PC where one of the persons/accused is similarly
placed it is not necessary that the similarly-placed
person/accused should approach the Sessions Court for
grant of bail; he can file an application before the High
Court under section 438/439 of the Cr.PC.
18. The above circumstances are illustrative and not
exhaustive. There could be other exceptional
circumstances which would always depend upon the facts
and circumstances of each case.
19. In view of the reasons and discussions made above
it is held that normally a person/accused should exhaust
his remedy under section 438 or 439 of the Cr.PC before
the Sessions Judge before making an application before
the High Court under section 438 or 439 of the Cr.PC.
However in exceptional illustrated circumstances a
person/accused can approach the High Court without
exhausting his remedy before the Sessions Judge.
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20. With the above observations we are now dealing
with the bail application in question.
21. The petitioner is in custody for committing offence
under sections 387, 507, read with section 34 of the IPC,
with the case crime number 56/2014 on the file of
Serfanguri police station in Kokrajhar District.
22. It appears that grave allegations are made in the
complaint. The petitioner has filed an application without
exhausting his remedy of filing an application before the
Sessions Court. For the reasons stated above it is just and
necessary that the petitioner should exhaust his remedy
before the Sessions Judge and thereafter approach the
High Court. Accordingly the petition is disposed of.
14. A similar view has been expressed by the Delhi High
Court and Bombay High Court in Phulmai Tamang and
Mohanlal’s cases supra respectively.
15. In a recent judgment of this Court in Imran’s case
supra, the co-ordinate Bench held as under:-
“7. Though Sessions Court and High Court have
concurrent jurisdiction in entertaining and deciding a
petition for bail, it is prudent for the petitioner to approach
the Sessions Court at the first instance, unless there are
exceptional circumstances to file such application directly
before the High Court, bypassing the Sessions Court. In
the above decision rendered by the Bombay High Court,
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the said position has been reiterated. No exceptional
reasons are made out so as to entertain the instant
petition. If an adverse order is passed by the Sessions
Court, it is always open for the petitioner to file a petition
before this Court for the same relief. If the instant petition
seeking anticipatory bail is entertained without there being
any exceptional grounds made out, it will set a precedent
and in every case, this Court has to deal with such
petitions.”
16. In the facts of the instant case on hand, despite having
referred to the dismissal of the earlier bail application by the trial
court and this Court and confirmed by the Apex Court as stated
supra, the petitioner has neither pleaded nor proved or established
exceptional or compelling circumstances as to why he is not in a
position to approach the trial court or not be relegated to the trial
court before approaching this Court by way of the present second
successive bail petition; in other words, in the absence of any
reasons whatsoever pleaded, proved or established from the
pleadings and material on record, much less, exceptional or
compelling reasons for not approaching the trial court, in the facts
and circumstances of the instant case, I am of the view that the
petitioner has not made out valid or sufficient ground to maintain
the present petition before this Court without exhausting his
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remedy of approaching the trial court, especially when the first bail
application was undisputedly filed before the trial court which was
rejected as stated supra. Under these circumstances, I am of the
view that the present petition filed by the petitioner is not
maintainable and is not entertainable at this stage without the
petitioner exhausting his remedy by approaching the trial court.
The judgment of the Apex Court in Kanumuri‘s case supra, relied
upon by the petitioner is not applicable to the facts of the instant
case. In the said judgment, the Apex Court held as under:-
“14. The jurisdiction of the trial court as well as the
High Court under Section 439 of the Code of Criminal
Procedure, 1973 is concurrent and merely because the
High Court was approached by the appellant without
approaching the trial court would not mean that the High
Court could not have considered the bail application of the
appellant. As such, in our view, the High Court ought to
have considered the bail application of the appellant on
merits and decided the same. However, since the High
Court has not considered the matter on merits and much
water has flown since the passing of the order of the High
Court, as now there are two medical reports of the
appellant, one by the government hospital on the direction
of the High Court and the other by Army Hospital on the
directions of this Court, we deem it fit and proper to
consider the bail application of the appellant on merits.”
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17. As is clear from the aforesaid judgment, the same was
rendered in the factual matrix emerging in the said case, inasmuch
as apart from the fact that there was a delay in the matter, there
were two medical reports of the accused / appellant which was
taken out of by the Apex Court while coming to the conclusion that
the petitioner / applicant need not be relegated to exhaust his
remedy before the trial court, thereby indicating that the said
judgment rendered in the facts of the said case cannot be made
applicable to the facts of the instant case, particularly when no
exceptional reasons / grounds have been pleaded or established
by the petitioner.
18. Learned Senior counsel for the petitioner has placed
reliance upon the judgment of the Apex Court in Manish Sisodia’s
case supra, the relevant portion of which reads as under:-
15. A preliminary objection has been raised on
behalf of the learned ASG that the appellant cannot be
permitted to file second set of SLPs to challenge the order
of the High Court dated 21st May 2024 when the earlier
SLPs arising out of the same order were disposed of. He
submitted that the liberty granted by this Court vide order
dated 4th June 2024 has to be construed as a liberty to
apply to the trial court afresh. It is submitted that, only after
the appellant approaches the trial court and in the event he
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does not succeed before the trial court, thereafter he
approaches the High Court and in the event he also does
not succeed before the High Court, then only he would be
entitled to approach this Court. He therefore submitted that
the present appeals deserve to be rejected thereby
relegating the appellant to approach the trial court afresh.
To buttress his submission, Shri Raju relied on the
judgment of this Court in the case
of Kunhayammed v. State of Kerala.
XXXX
28. Before considering the submissions of the learned
ASG with regard to maintainability of the present appeals
on account of the second order of this Court, it will be
apposite to refer to certain observations made by this
Court in its first order, which read thus:
“26. However, we are also concerned about
the prolonged period of incarceration suffered by
the appellant – Manish Sisodia. In P.
Chidambaram v. Directorate of
Enforcement, (2020) 13 SCC 791, the appellant
therein was granted bail after being kept in
custody for around 49 days [P.
Chidambaram v. Central Bureau of
Investigation, (2020) 13 SCC 337], relying on the
Constitution Bench in Shri Gurbaksh Singh
Sibbia v. State of Punjab, (1980) 2 SCC 565,
and Sanjay Chandra v. Central Bureau of
Investigation, (2012) 1 SCC 40, that even if the
allegation is one of grave economic offence, it is
not a rule that bail should be denied in every
case. Ultimately, the consideration has to be
made on a case to case basis, on the facts. The
primary object is to secure the presence of the
accused to stand trial. The argument that the
appellant therein was a flight risk or that there
was a possibility of tampering with the evidence
or influencing the witnesses, was rejected by the
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Court. Again, in Satender Kumar Antil v. Central
Bureau of Investigation, (2022) 10 SCC 51, this
Court referred to Surinder Singh Alias Shingara
Singh v. State of Punjab, (2005) 7 SCC
387 and Kashmira Singh v. State of
Punjab, (1977) 4 SCC 291, to emphasise that the
right to speedy trial is a fundamental right within
the broad scope of Article 21 of the Constitution.
In Vijay Madanlal Choudhary (supra), this Court
while highlighting the evil of economic offences
like money laundering, and its adverse impact on
the society and citizens, observed that arrest
infringes the fundamental right to life. This Court
referred to Section 19 of the PML Act, for the in-
built safeguards to be adhered to by the
authorised officers to ensure fairness, objectivity
and accountability. [See also Pankaj
Bansal v. Union of India, 2023 SCC OnLine SC
1244] Vijay Madanlal Choudhary (supra), also
held that Section 436A of the Code can apply to
offences under the PML Act, as it effectuates the
right to speedy trial, a facet of the right to life,
except for a valid ground such as where the trial
is delayed at the instance of the accused himself.
In our opinion, Section 436A should not be
construed as a mandate that an accused should
not be granted bail under the PML Act till he has
suffered incarceration for the specified period.
This Court, in Arnab Manoranjan
Goswami v. State of Maharashtra, (2021) 2 SCC
427, held that while ensuring proper enforcement
of criminal law on one hand, the court must be
conscious that liberty across human eras is as
tenacious as tenacious can be.
27. The appellant – Manish Sisodia has
argued that given the number of witnesses, 294
in the prosecution filed by the CBI and 162 in the
prosecution filed by the DoE, and the documents
31,000 pages and 25,000 pages respectively, the
fact that the CBI has filed multiple charge sheets,
the arguments of charge have not commenced.
The trial court has allowed application of the
accused for furnishing of additional documents,
which order has been challenged by the
prosecution under Section 482 of the Code
before the High Court. It was stated at the Bar,
on behalf of the prosecution that the said petition
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under Section 482 will be withdrawn. It was also
stated at the Bar, by the prosecution that the trial
would be concluded within next six to eight
months.
28. Detention or jail before being pronounced
guilty of an offence should not become
punishment without trial. If the trial gets
protracted despite assurances of the prosecution,
and it is clear that case will not be decided within
a foreseeable time, the prayer for bail may be
meritorious. While the prosecution may pertain to
an economic offence, yet it may not be proper to
equate these cases with those punishable with
death, imprisonment for life, ten years or more
like offences under the Narcotic Drugs and
Psychotropic Substances Act, 1985, murder,
cases of rape, dacoity, kidnaping for ransom,
mass violence, etc. Neither is this a case where
100/1000s of depositors have been defrauded.
The allegations have to be established and
proven. The right to bail in cases of delay,
coupled with incarceration for a long period,
depending on the nature of the allegations,
should be read into Section 439 of the Code and
Section 45 of the PML Act. The reason is that the
constitutional mandate is the higher law, and it is
the basic right of the person charged of an
offence and not convicted, that he be ensured
and given a speedy trial. When the trial is not
proceeding for reasons not attributable to the
accused, the court, unless there are good
reasons, may well be guided to exercise the
power to grant bail. This would be truer where
the trial would take years.
29. In view of the assurance given at the Bar
on behalf of the prosecution that they shall
conclude the trial by taking appropriate steps
within next six to eight months, we give liberty to
the appellant – Manish Sisodia to move a fresh
application for bail in case of change in
circumstances, or in case the trial is protracted
and proceeds at a snail’s pace in next three
months. If any application for bail is filed in the
above circumstances, the same would be
considered by the trial court on merits without
being influenced by the dismissal of the earlier
bail application, including the present judgment.
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Observations made above, re. : right to speedy
trial, will, however, be taken into consideration.
The appellant – Manish Sisodia may also file an
application for interim bail in case of ill health and
medical emergency due to illness of his wife.
Such application would be also examined on its
own merits.”
29. A perusal of the aforesaid would reveal that this
Court was concerned about the prolonged period of
incarceration suffered by the appellant. After considering
various earlier pronouncements, this Court emphasised
that the right to speedy trial is a fundamental right within
the broad scope of Article 21 of the Constitution. Relying
on Vijay Madanlal Choudhary v. Union of India, this Court
observed that Section 436A Cr. P.C. should not be
construed as a mandate that an accused should not be
granted bail under the PMLA till he has suffered
incarceration for the specified period. This Court recorded
the assurance given by the prosecution that they shall
conclude the trial by taking appropriate steps within next 6-
8 months. This Court, after recording the said
submissions, granted liberty to the appellant to move a
fresh application for bail in case of change in
circumstances or in case the trial was protracted and
proceeded at a snail’s pace in next three months. This
Court observed that if any application was filed, the same
would be considered by the trial court on merits without
being influenced by the dismissal of the earlier bail
applications including its own judgment. It further observed
that the observations made regarding the right to speedy
trial will be taken into consideration.
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30. Since the trial proceeded at a snail’s pace in the
period after three months of the first order of this Court, the
appellant filed the second application for bail before the
trial court. The same came to be rejected by the trial court
on 30th April 2024. It can thus be seen that it took a period
of almost three months for the trial court to decide the said
application. By the time the appellant approached the High
Court, a period of more than six months had elapsed from
the date on which the first order of this Court was passed.
The same also came to be rejected on 21st May 2024.
31. When the appellant approached this Court in the
second round and when the second order was passed by
this Court on 4th June 2024, a period of 7 months and 4
days had elapsed from the date of the first order of this
Court. However, this Court took into consideration the
statement of the learned Solicitor General that the
investigation would be concluded and final
complaint/charge-sheet would be filed expeditiously and at
any rate on or before 3rd July 2024 and thereafter, the trial
court would be free to proceed with the trial. It, after
observing that “having regard to the fact that the period of
6-8 months fixed by this Court in its first order having not
come to an end”, disposed of the petitions with liberty to
the appellant to revive his prayer afresh after filing of the
final complaint/charge-sheet.
32. It could thus be seen that this Court had granted
liberty to the appellant to revive his prayer after filing of the
charge-sheet. Now, relegating the appellant to again
approach the trial court and thereafter the High Court and
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only thereafter this Court, in our view, would be making
him play a game of “Snake and Ladder”. The trial court
and the High Court have already taken a view and in our
view relegating the appellant again to the trial court and
the High Court would be an empty formality. In a matter
pertaining to the life and liberty of a citizen which is one of
the most sacrosanct rights guaranteed by the Constitution,
a citizen cannot be made to run from pillar to post.
33. A careful reading of the second order of this Court
dated 4th June 2024 would show that this Court recorded
that they did not propose to go into the arguments or dwell
upon it in view of the liberty granted in the first order of this
Court. Thereafter, this Court noticed the assurance of the
learned Solicitor General that the investigation would be
concluded and final complaint/charge-sheet would be filed
at any rate on or before 3rd July 2024. This Court further
observed in its second order that since the period of 6-8
months fixed by it in its first order had not come to an end,
it was inclined to dispose of this petition with liberty to the
appellant to revive his prayer. It will be a travesty of justice
to construe that the carefully couched order preserving the
right of the appellant to revive his prayer for grant of
special leave against the High Court order, to mean that
he should be relegated all the way down to the trial court.
The memorable adage, that procedure is a hand maiden
and not a mistress of justice rings loudly in our ears.
35. In our view, the liberty reserved by this Court vide
its second order, to revive the request of the appellant will
have to be construed as a liberty given by this Court to
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revive his prayer afresh after filing of the final
complaint/charge-sheet. Undisputedly, the present appeals
have been filed after the final complaint/charge-sheet has
been filed by the respondents. In that view of the matter,
we are not inclined to entertain the preliminary objection
and the same is rejected.”
19. A perusal of the aforesaid judgment will also indicate
that the same was rendered in the peculiar factual situation arising
therein and by noticing that liberty had been given by the Apex
Court itself in its earlier orders coupled with the facts and
circumstances noticed by the Apex Court referred to supra. In fact,
the said petition before the Apex Court arose out of the third bail
application filed by the accused and there were earlier orders and
directions passed / issued by the Apex Court including liberty to file
a fresh bail application, cumulative effect of which was considered
by the Apex Court to come to the conclusion that there was no
necessity to relegate the petitioner therein to the trial court
especially after long lapse of time, during which, the petitioner
continued to remain in judicial custody. The said judgment based
on specific facts and circumstances also would not be applicable to
the facts of the present case, especially when the compelling
circumstances, which prevented the petitioner from approaching
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the trial court have neither been pleaded nor proved / established
and as such, no reliance can be placed upon even on this
judgment by the petitioner in support of his claim, which cannot be
accepted.
20. Insofar as the judgment of the Apex Court in Arvind
Kejriwal‘s case supra, the Apex Court held as under:-
“Whether the filing of a chargesheet is a change in
circumstances warranting relegation to the trial court for
grant of regular bail?
43. It is true that generally the Trial Court should consider
the prayer seeking bail once the charge sheet is filed, since
the material that an Investigating Authority may have been
able to procure would undoubtedly facilitate that court to form
a prima facie opinion with regard to (i) the gravity of offence;
(ii) the degree of involvement of the applicant; (iii) the
background and vulnerability of the witnesses; (iv) the
approximate timeline for conclusion of the trial based on the
number of witnesses; and (v) the societal impact of granting
or denying bail. However, there can be no straitjacket formula
which enumerates that every case concerning the
consideration of bail should depend upon the filing of a
charge sheet. In fact, each case ought to be assessed on its
own merits, recognizing that no one-size fits all formula exists
for determining bail.
44. An under trial thus should, ordinarily, first approach
the Trial Court for bail, as this process not only provides the
accused an opportunity for initial relief but also allows the
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High Court to serve as a secondary avenue if the Trial Court
denies bail for inadequate reasons. This approach is
beneficial for both the accused and the prosecution; if bail is
granted without proper consideration, the prosecution too can
seek corrective measures from the High Court.
45. However, superior courts should adhere to this
procedural recourse from the outset. If an accused
approaches the High Court directly without first seeking relief
from the Trial Court, it is generally appropriate for the High
Court to redirect them to the Trial Court at the threshold.
Nevertheless, if there are significant delays following notice,
it may not be prudent to relegate the matter to the Trial Court
at a later stage. Bail being closely tied to personal liberty,
such claims should be adjudicated promptly on their merits,
rather than oscillating between courts on mere procedural
technicalities.
46. This issue is however, more or less academic in the
instant case as the High Court did not relegate the Appellant
to the Trial Court at the preliminary stage. Since notice was
issued and the parties were apparently heard on merits by
the High Court, we do not deem it necessary at this stage to
relegate the Appellant to the Trial Court even though filing of
a charge sheet is a change in the circumstances.”
21. In the concurring judgment by Hon’ble Mr.Justice Ujjal
Bhuyan, His Lordship held as under:-
“I have gone through the draft judgment of my esteemed
senior colleague Justice Surya Kant. I am in complete
agreement with the conclusion and direction of his Lordship that
the appellant should be released on bail. However, on the
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necessity and timing of the arrest, I have a definite point of
view. Therefore, I deem it appropriate to render a separate
opinion on the point of necessity and timing of the arrest of the
appellant while concurring with the opinion of Justice Surya
Kant that the appellant should be released on bail.
35. If indeed the High Court thought of remanding the
appellant to the forum of the Court of Special Judge, it could
have done so at the threshold itself. After issuing notice, after
hearing the parties at length and after reserving the judgment
for about a week, the above order was passed by the High
Court. Though couched in a language which appears to be in
favour of the appellant, in practical terms it has only resulted
in prolonging the incarceration of the appellant for a far more
longer period impacting his personal liberty.
36. In somewhat similar circumstances, this Court
in Kanumuri Raghurama Krishnam Raju v. State of A.P –
(2021) 13 SCC 822, after observing that jurisdiction of the
trial court as well as of the High Court under Section 439 Cr.
P.C. is concurrent, held that merely because the High Court
was approached by the appellant without approaching the
trial court would not mean that the High Court could not have
considered the bail application of the appellant. In the facts of
that case, this Court opined that the High Court ought to have
considered the bail application of the appellant on merit and
decided the same. However, having regard to the fact that
much time had lapsed since passing of the order of the High
Court and there were subsequent medical reports of the
appellant, this Court did not relegate the appellant back to the
High Court but considered the bail application of the appellant
on merit herein itself. This Court held thus:
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14. The jurisdiction of the trial court as well as the High
Court under Section 439 of the Criminal Procedure Code,
1973 is concurrent and merely because the High Court
was approached by the appellant without approaching the
trial court would not mean that the High Court could not
have considered the bail application of the appellant. As
such, in our view, the High Court ought to have
considered the bail application of the appellant on merits
and decided the same. However, since the High Court has
not considered the matter on merits and much water has
flown since the passing of the order of the High Court, as
now there are two medical reports of the appellant, one by
the government hospital on the direction of the High Court
and the other by Army Hospital on the directions of this
Court, we deem it fit and proper to consider the bail
application of the appellant on merits.
37. Mr. Raju, learned Additional Solicitor General of
India, while supporting the order of the High Court vehemently
argued that the appellant has to first approach the trial court for
bail though under Section 439 Cr. P.C. both the Special Court
and the High Court have concurrent jurisdiction. No special
privilege should be shown or granted to the appellant. I am
afraid such a submission cannot be accepted. In this regard, I
am in respectful agreement with the view taken by this Court
in Kanumuri Raghurama Krishnam Raju. That apart, when the
appellant has been granted bail under the more stringent
provisions of PMLA, further detention of the appellant by the
CBI in respect of the same predicate offence has become
wholly untenable. In such circumstances, asking the appellant
or relegating the appellant to approach the trial court, then to
the High Court and then to this Court for a fresh round of bail
proceedings in the CBI case after he had already traversed the
same route in the PMLA case would be nothing but a case of
procedure triumphing the cause of justice. In this connection, it
would be apt to refer to the observations of this Court in the
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case of Manish Sisodia v. CBI, Criminal Appeal No. 3296 of
2024, decided on 09.08.2024:
32. It could thus be seen that this Court had granted liberty
to the appellant to revive his prayer after filing of the
chargesheet. Now, relegating the appellant to again approach
the trial court and thereafter the High Court and only thereafter
this Court, in our view, would be making him play a game of
“Snake and Ladder”. The trial court and the High Court have
already taken a view and in our view relegating the appellant
again to the trial court and the High Court would be an empty
formality. In a matter pertaining to the life and liberty of a citizen
which is one of the most sacrosanct rights guaranteed by the
Constitution, a citizen cannot be made to run from pillar to post.
37.1. Manish Sisodia is a co-accused in the same CBI
case and the ED case. His second bail application was
rejected by the trial court on 30.04.2024 after taking about
three months’ time to decide the same. When Sisodia moved
the High Court for bail, the same also came to be rejected on
21.05.2024. It was thereafter that Manish Sisodia approached
this Court in the second round. In the hearing which took place
on 04.06.2024, the learned Solicitor General for India made a
statement before the Court that investigation would be
concluded and final complaint as well as chargesheet would
be filed in both the ED and CBI cases on or before
03.07.2024. On the basis of the above statement of the
learned Solicitor General, this Court disposed of the two
criminal appeals of Shri Manish Sisodia with liberty to him to
revive his prayer afresh after filing of final complaint and
chargesheet. When Shri Sisodia approached this Court for bail
after the complaint and the chargesheet were filed, Mr. Raju
learned Additional Solicitor General of India appearing for the
ED as well as the CBI contended that Shri Sisodia should
again approach the trial court for regular bail as in the
interregnum, the complaint and the chargesheet were filed.
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Such submission of Mr. Raju was rejected by this Court.
Adverting to the earlier order of this Court dated 04.05.2024,
this Court in Manish Sisodia observed as under:
33. ……..It will be a travesty of justice to construe that the
carefully couched order preserving the right of the appellant to
revive his prayer for grant of special leave against the High
Court order, to mean that he should be relegated all the way
down to the trial court. The memorable adage, that procedure
is a hand maiden and not a mistress of justice rings loudly in
our ears.
22. As can be seen from the aforesaid judgment, earlier
judgments of the Apex Court in Kanumuri’s and Manish Sisodia’s
cases have been followed and applied to the facts of the said
cases stated supra, the facts of the present case on hand are
completely different and the said judgments cannot be applied to
the facts of the instant case. It is also pertinent to note that even
the aforesaid judgments do not obviate or dispense with the
requirement of approaching the trial court and exhausting the
remedy in the first instance before approaching this Court and in
order to do so, it was incumbent upon the petitioner to make out
valid reasons / exceptional circumstances as to why he did not
approach the trial court earlier. Under these circumstances, I am of
the view that the various contentions urged by the petitioner cannot
be accepted.
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23. In my considered opinion, having regard to the material
on record and in the facts and circumstances of the case, it would
be just and appropriate to relegate the petitioner to expedite his
remedy by approaching the trial court and reserving liberty in
favour of the petitioner thereafter to approach this Court in
accordance with law.
24. In the result, I pass the following:-
ORDER
(i) Petition is hereby disposed of by relegating the petitioner
to seek appropriate remedy by filing an bail application before the
Sessions Court.
(ii) The trial court is directed to consider the bail application
to be filed by the petitioner and dispose of the same within a period
of ten days from the time the petitioner files such a bail application.
(iii) All rival contentions on all aspects of the matter are kept
open and no opinion is expressed on the same.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
Srl.